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FINDIN S OF FACT AND DECISOIN
Case Number: 166267
Student's Name:
School District: _J
Date of Birth:
Hearing Requested By: Parent
Date of Hearing: July 25, 2017
September 14, 2017
November 2, 2017
November 28, 2017
Hearing Officer: Dora M. Lassinger Case No. 166267
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 25, 2017
Advocate — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 14, 2017
Advocate — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 2, 2017
Advocate — Student
District Representative — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 28, 2017
Advocate — Student
Parents
Director (by telephone) — Student
District Representative — DOE
The parents of filed arequest for an impartial hearing on May 22, 2017 for the purpose of seeking funding for their unilateral placement of the student at for the 2016-2017 school year. I was designated to hear this matter on May 22, 2017, pursuant to 20 U.S.C. Section 1415(f)(1).
An impartial hearing was held on September 14, November 2 and November 28, 2017.
The compliance date was extended onfive occasions, due to the unavailability of witnesses, and extensive testimony and issues. (IHO Ex. II- VI).
Parents’ Position
The parents complained that the challenged (April 7, 2016) IEP is procedurally and substantively invalid; specifically, that the CSE review team was not duly constituted, that the IEP did not include sufficient goals , that the CSE failed to conduct an appropriate or , and that the recommended program was inappropriate because the student required ahigher staffing ratio. The parent also alleged that while the student was recommended for programming, no program was recommended . (IHO Ex. 1). The parents are requesting that payment of tuition be made directly to the school. (Tr. pp. 183-184).[1]
Department of Education (“DOE”) Position
The DOE’s position is that the recommended program provided the student with a Free Appropriate Public Education (“FAPE”). (Tr. p. 22). In addition, the DOE argues that the parents failed to meet their burden of proving the appropriateness of the unilateral placement through the testimony of the school witness , who was not at the school for the majority of the relevant school year.
Citing Application of the New York City Department of Education, Appeal No. 12-002, the DOE also argues that the fact that the student was not placed at the school of 2016 should defeat the parents’ claim, as the student required programming.
(Tr. pp. 191-198).
Evidence at Hearing
The student is a with aclassification of . His classification is not in dispute. (Tr. p. 33). , the student’s mother, testified that the student received early intervention services, in an L_ program. (Tr. p. 153). For , he attended , in an _J class. (Tr. pp. 154-155). When he aged out of that program (2015-2016 school year), the DOE recommended aL_J program. The parent went to observe the class, but felt it was not appropriate, because it did not utilize . She also felt her sonwould be unsafe in the large building in which the class was located, . (Tr. pp. 156-
157). The student began attending during the 2015-2016 school year, and showed improvement. (Tr. pp. 158-159).
On January 27, 2016, a performed a evaluation of the student, as part of a reevaluation. __J The recommended a
. (DOE Ex. 3).
On January 28, 2016, a / at submitted areport describing the student as . She recommended four goals;
. (DOE Ex. 8).
the educational director at submitted aprogress report dated March 10, 2016, describing the improvement
,a employed by the DOE, participated in the
April 7, 2016, IEP meeting as the and district representative. The CSE review team also included ,a teacher employed at the CSE, the mother, and , who was then director at . (DOE Ex.
1, pp. 12-14; Tr. pp. 31-32). The IEP team did not include a teacher; although was considered for the student. acknowledged that a should have participated in the meeting. (Tr. pp. 49-50).
testified the CSE reviewed the updated as well as the Progress Reports from the school. (Tr. p. 34). She stated that the goals were developed with input from the school; but that some of the goals recommended by the school were not appropriate because they were not specific, measurable, attainable, realistic and timely (
“SMART”). (Tr. p. 47).
The IEP includes four goals for one goal for improving ; four goals for and five goals for and education. (DOE Ex. 1, p.6). could not explain how the goal would be implemented.(Tr. pp. 69-70).
The IEP includes only two academic goals:
(DOE Ex. 1, p. 6). testified that the goals also included academic skills. (Tr. p. 67). She stated that based upon the evaluation in evidence, the student . (Tr. p. 71).
The minutes from the April 7, 2016 meeting reflect that an and I I were developed with input from the parent and school. (DOE Ex. 10). also testified that aI I was created; (but did not recall whether was utilized in the L_). (Tr. p. 44, .69-
70). The hearing record, however, includes only an L_, which appears to have been performed at the IEP meeting. (Tr. p. 37; DOE Ex. 5). The _J includes recommendations for a_J, including a . (Tr. 40; DOE Ex. 5, p. 5). The IEP does not include a LJ, however; and no was separately introduced into evidence.
testified that the parent and the school requested L__ for the student; however she had no opinion as to the appropriateness of _J for the student. She does not recall if they disputed the class size or related services. (Tr. pp. 46, 48). The parent was told that specific methodologies are not recommended, as teachers have been trained in different methodologies. (DOE Ex. 10, p. 2; Tr. p. 59).
The CSE recommended that the student be placed in a Program with related services of . programming was also recommended. (DOE Ex.
2 The student’s need for programming was acknowledged by the educational director of , where the student was placed by the parents. (Tr. p. 140). 1). testified that, in her opinion, the IEP is appropriate. (Tr. p. 48). A school location letter dated May 27, 2016, was sent to the parent, offering the student aclass. (DOE Ex. 7).
The DOE did not present any testimony regarding the recommended class.
attended the April 7, 2016 IEP meeting. (Tr. p. 159). She was told that even though was effective for her son; the CSE could not guarantee it would be used in the recommended program; and that the teacher would choose the methodology. Nor did the IEP include a (Tr. pp. 160-161).
testified that she received an offer of a placement in June. She repeatedly tried to call the school; and leave a message, but her calls were not returned. She went to visit the site when school was supposed to have been in session, during the summer of 2016; but no one was there. When she tried to call, she did not receive an answer. (Tr. pp. 165-167).
On June 21, 2016, the parents signed acontract enrolling the student at for the 2016/2017 school year, with atotal tuition of . (Par. Ex. B). As of November 1, 2017, they had not paid any of that amount. (Par. Ex. C). The affidavit in evidence indicates that the tuition charged the student was based upon a 10month school year, from September 2016 to June 2017; with assessed each month.(Par. Ex. C).
In 2015, the parents reported adjusted gross income of . (Par. Ex. O). Their income in 2016 was approximately . and the parents could not afford the tuition at _J
. (Tr. p. 176).
On August 29, 2016, the parents sent notice to the CSE of their intention to place at for the 2016-2017 school year and seek funding. (DOE Ex .2). There is no evidence in the record that the DOE ever responded to the notice.
2 The student’s need for programming was acknowledged by the educational director of , where the student was placed by the parents. (Tr. p. 140).
testified that during the summer of 2016, the student attended a camp, arranged through ; where he received his related services and a . He attended during the summer of 2017. The parents are not seeking reimbursement for the program their sonattended during the Summer of 2016. (Tr. pp.
168-170, 178). feels that the student made progress in at the camp; and did not regress in other areas. (Tr. pp. 180-181).
She testified that during the 2016-2017 school year, her sonprogressed (Tr. pp. 170-172). She
spoke with the monthly; and received suggestions for managing the student’s . (Tr. pp. 172-173).
, the director at , testified that she holds a Master’s Degrees in education and is a licensed teacher. She is also a .
(Tr. pp. 88-89) She testified that she came to the school in June 2017. (Tr. p. 97).[3] During the 2016-2017 school year, the school consisted of approximately 25 children, within four classes on two floors. The school also had agym, , a kitchen, and access to a pool. (Tr. pp. 99, 127). The school employed master’s level teachers, two ,
, / and . (Tr. p. 101, 111).
Each class had ateacher, and each child was assigned a . The students received and . The ~ programs were run by the . (Tr. p. 102). The student’s class consisted of 7 students n teacher and , (who received intensive training). He was , and within chronologically. He received all of his related services at the school. (Tr. pp.110-111, 144, 147).
reviewed data for the entire school year, and conferred with staff about him. (Tr. pp. 102, 107-108). She also reviewed his reports. She testified that (Tr. p. 103). She described him
as
. (Tr. p. 104).
testified that (Tr. pp. 105, 118-119). She testified that . (Tr. p. 120). She testified that (Tr. pp. 143-144).
On June 21, 2017 the student’s classroom teacher prepared an annual progress report indicating improvement in . She reported that
.
(Par. Ex. H).
testified that methodology was utilized throughout student’s program, including n ; and data was taken onall of his programs and . His provided a . (Tr. pp. 105-106). testified that the student had a targeting . The plan was modified throughout the year. (Tr. p. 108). She testified that without a . (Tr. p. 109).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F.v. Douglas County School District, 137 S. Ct. 988 (2017).
In evaluating whether aschool district has complied with the procedural requirements of the IDEA, ahearing officer may find that achild did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education. (II)
significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused adeprivation of educational benefits. 20 U.S.C. Sec. 1415(f)(3)(e)(ii).
While the CSE review team should have included a teacher, the fact that the team was not duly constituted did not impact the student, as the parent never advocated for a placement.
I do find, however, that the IEP does not sufficiently address the student’s significant and needs. The IEP contains one goal
; and no . Itappears that the was conducted in the course of the challenged IEP meeting; and although there was testimony that a_J was developed, it was not made part of the record. Clearly, the CSE recognized that this was a student whose required intervention. I find that its failure to develop strategies to address those constituted adenial of FAPE. C.F. v. New York City Dept. of Educ, 746 F. 3d
68 (2d Cir. 2014).
The CSE proposed to manage the student’s with a ; but in the absence of a _J or adequate goals, it is not reasonable to assume that the student would have made progress in the recommended program. I credit L_ that without a , the student would , and would require ; and that he would not have progressed
Furthermore, the DOE failed to prove that the recommended program would address the student’s significant needs which, at the time of the review, were managed with frequent and a .
Finally, the DOE did not present any evidence that the IEP could be implemented at the recommended site. The parent’s testimony that the program was not operating during the summer of 2016 was not contradicted by any evidence from the DOE.
I find that the combination of procedural and substantive inadequacies caused a deprivation of educational benefits and rose to the level of a denial of FAPE. Id.
For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommended program.
Appropriateness of Parental Placement
To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank . v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir.
2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank . 128 S. Ct. 436
(2007).
I find that the parents satisfied their burden of proving that provided the student with educational instruction specially designed to meet his unique needs.
Although was not an employee of the school during the school year in question, I find that her testimony was credible, and that it supported the parent’s position. _J observed the student, and was familiar with the program (as it existed during the 2016- 2017 school year). Furthermore, as a , she was qualified to review the data kept regarding the student, and provide an opinion as to his progress during the 2016-2017 school year. Her testimony regarding his progress is corroborated by the teacher’s annual progress report in evidence.(Par. Ex. H).
provided the student with instruction, using methodology, throughout the program. The student also received throughout the day, and a , which helped him to . The school provided him with all of his related services. The record indicates that he made progress
7 in academics.
I do not find that the fact that the student did not of 2016 should defeat the parents’ claim. I credit that the parents enrolled him in aday camp where he received his related services, and support. The parents are not seeking funding for the program in this hearing. This case is distinguishable from Application of the New York City Department of Education, Appeal No. 12-002, cited by the DOE. In the cited case, the school (which was found to be inappropriate) did not provide the student with his related services. In the instant case, the school provided the student with extensive related services and other supports.
Equitable Considerations
In determining whether equitable considerations support arequest for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.
Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226
F. 3d 60 (2d Cir. 2000).
The record indicates that participated in the CSE review and voiced her concerns; and that the parents provided notice of their intent to enroll the student at and otherwise cooperated with the CSE. The tuition charged by is reasonable, taking into account the specialized nature of the instruction provided, including extensive related services and support. I find that the parents were unable to pay the tuition and seek reimbursement. As the school year has now passed, the tuition owed should be paid directly to
.
Order
Therefore, it is hereby ordered that the DOE shall pay . directly to , within 30 days of this order, for the student’s tuition for the 2016-2017 school year,
DORA LASSIN ER, ESQ
Impartial Hearing Officer.
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has aright to obtain areview of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
Directions and forms can be found in the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
Department of Education Exhibits
1. IEP, 4/7/16, 14 pages
2. Notice of Unilateral Placement, 8/29/16, two pages
3. valuation, 2/11/16, five pages
4. Classroom observation, 1/11/17, two pages
5. _J, 4/7/16, five pages
6. Prior written notice, 5/27/16, four pages
7. School location letter, 5/27/16, two pages
8. - report, 5/27/16, two pages
9. Progress Report, 3/10/16, two pages
10. Conference minutes, 4/7/16, three pages
Parents’ Exhibits
A. Withdrawn
B school contract, 6/22/17, three pages
C affidavit, 11/2/17, one page
D mission statement, undated, two pages
E schedule, undated, one page
F , undated, one page
Initial assessment,11/3/16, five pages
H Annual progress report, 6/21/17, three pages
I assessment, 10/27/16, three pages
J annual report, 6/18/17, five pages
K assessment, 10/27/16, two pages
L annual progress report, undated, two pages
M assessment report, 10/27/16, three pages
N progress report, 6/27/17, two pages
O Parent's 2015 tax return, 6/20/16, two pages
Impartial Hearing Officer Exhibits
I. Request for Hearing, 5/22/17, 3 pages
II. CFU, 7-25-17, 1 page
III. CFU, 8-11-17, 1 page
IV. CFU, 9-14-17, 1 page
V. CFU 11-2-17, 1 page
VI. CFU, 11-27-17 1 page
Footnotes
[1] In their complaint, the parents also requested funding for the student’s for the 2016-2017 school year , however no evidence was presented in support of that request, and it is deemed withdrawn.
[3] She testified that she accepted the position in April 2017; and while still at her previous job, she came to the school periodically between April and June 2017. (Tr. pp. 129-134).